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IN THE SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. CROIX CARL SIMON, ) ) Petitioner, ) CIVIL NO. SX-15-CV-278 ) V. ) PETITION FOR WRIT ) OF HABEAS CORPUS RICK MULLGRAV,! DIRECTOR OF THE U.S.V.I. ) BUREAU OF CORRECTIONS, GOVERNMENT OF ) THE VIRGIN ISLANDS, ET AL., ) ) Respondents. ) ) MEMORANDUM OPINION MOLLOY, Judge. Petitioner, Carl Simon (“Simon”), filed a Petition for Writ of Habeas Corpus (“Petition” or “Pet.”) challenging certain conditions of his confinement. For the reasons stated below, the Court will grant the petition and issue a writ on Simon’s claim that he is not allowed to make unmonitored telephone calls to his attorney but will deny the petition on all of his remaining claims. IL BACKGROUND In January 1995, a jury empaneled by the Territorial Court of the Virgin Islands? found Simon guilty of murder in the first degree (Count I), robbery in the first degree (Count II), and burglary in the third degree (Count III). See Simon v. Gov't of the Virgin Islands, 679 F.3d 109, 111-12 (3d Cir. 2012); see also Simon v. Gov't of the Virgin Islands, 116 F. Supp. 3d 529, 537 (D.V.I. 2015); Simon v. Joseph, 59 V.I. 611, 614 (V.I. 2013). On February 22, 1995, the trial court sentenced Simon to a term of life imprisonment without parole on Count I, seven and 1 The initial petition named Dwayne Benjamin in the caption as the Director of the Virgin Islands Bureau of Corrections. Pursuant to Rule 25(d) of the Virgin Islands Rules of Civil Procedure, the Court will substitute the name of Rick Mullgrav since he is the person currently serving in that capacity. V.I. R. Civ. P. 25(d) (“An action does not abate when a public officer who is a party in an official capacity dies, resigns, or otherwise ceases to hold office while the action is pending. The officer’s successor is automatically substituted as a party.”). 2 On October 29, 2004, the Territorial Court of the Virgin Islands name was officially changed to the Superior Court of the Virgin Islands. See Magens Point Resort Hotel v. Benjamin, 58 V.1. 191, 195 n.1 (V.I. 2009). Simon v. Mullgrav Case No. SX-15-CV-278 Memorandum Opinion a half years on Count II, and three and a half years on Count III. Simon, 679 F.3d at 112. The sentences were ordered to be served concurrently. Id. Simon is currently incarcerated at the Citrus County Detention Facility (“CCDF”) operated by Corrections Corporation of America (“CCA”) in Lecanto, Florida. Pet. at J 3. He was transferred from the Golden Grove Adult Correctional Facility (“GGACF”), managed by the Virgin Islands Bureau of Corrections (“BOC”) in St. Croix, U.S. Virgin Islands, to CCDF on September 30, 2014. Prior to his transfer to CCDF, Simon was employed in the GGACF institutional law library where he assisted other inmates with legal research and filing lawsuits concerning their criminal convictions and the conditions of their confinement. Id. at { 7. Simon also participated in GGACF’s educational and vocational programs, which included agriculture and Virgin Islands history. Id. at J 16. Prior to his transfer to CCDF, Simon had experienced dental problems and was receiving treatment for cavities and a broken tooth. Jd. at { 11. After his transfer to CCDF, Simon had a dental appointment in January 2015 with the institution’s dentist. He saw a dentist again on July 3, 2015. Id. at § 34. However, Simon refused the dentists’ treatment on both occasions because he disagreed with the course of treatment. Jd. at [J 30, 34. On July 27, 2015, Simon filed the instant petition asserting several claims for habeas relief. Il. LEGAL STANDARD Pursuant to Virgin Islands Habeas Corpus Rule 2,3 “[a]any person who believes he or she is unlawfully imprisoned or detained in custody, or confined under unlawful conditions, may file a petition for a writ of habeas corpus to seek review of the legality of that imprisonment or detention.” A petition for a writ of habeas corpus must “set forth separately 3 On August 18, 2017, the Virgin Islands Supreme Court promulgated the Virgin Islands Habeas Corpus Rules which were supposed to go into effect on October 1, 2017. However, due to the impact of Hurricanes Irma and Maria which struck the Territory of the Virgin Islands on September 2017, and the adverse impact on the operations of the Virgin Islands Judiciary, these rules did not go into effect until December 1, 2017. See In Re Adoption of V.L Habeas Corpus Rules, Promulgation No. 2017-008, 2017 V.I. Supreme LEXIS 71 (V.I. Aug. 18, 2017). Pursuant to Habeas Corpus Rule 1(e), “[t]hese rules, and subsequent amendments, govern ... habeas corpus proceedings pending on the effective date of the rules or amendments, unless . . . the Superior Court makes an express finding that applying them in a particular previously-pending action would be infeasible or would work an injustice.” There is no indication that applying the newly promulgated habeas corpus rules in this matter would be infeasible or work an injustice. Simon v. Mullgrav Case No. SX-15-CV-278 Memorandum Opinion each ground on which the imprisonment or detention is alleged to be illegal, and shall state the specific facts supporting each ground.” V.I. H.C.R. 2(a)(4). “When presented with a petition for a writ of habeas corpus, the Court must first determine whether the petition states a prima facie case for relief — that is, whether it states facts that, if true, entitle the petitioner to relief — and also whether the stated claims are for any reason procedurally barred.” Rivera-Moreno v. Gov't of the Virgin Islands, 61 V.1. 279, 311 (V.I. 2014) (citation and internal quotation marks omitted); see also V.1. H.C.R. 2(b). “If the court determines that the petition does not state a prima facie case for relief or that the claims are all procedurally barred, the court will deny the petition outright, but if it appears that the writ ought to issue, the Superior Court shall grant [a writ of habeas corpus] without delay.” Rivera-Moreno, 61 V.I. at 311 (citations and internal quotation marks omitted). At this initial stage, the petitioner “[is] not required to establish his ultimate entitlement to relief...” Alexander v. People of the Virgin Islands, 65 V.I. 385, 391 (V.I. 2016). “[I]t is sufficient that a petitioner simply make allegations that, if later proven true, would entitle him to habeas relief.” Blyden v. Gov't of the V.I,, 64 V.I. 367, 380 (V.I. 2016). “If the court determines that the petition does not state a prima facie case for relief or that the claims are all procedurally barred, the court will deny the petition outright, but if it appears that the writ ought to issue [then] the Superior Court shall grant [a writ of habeas corpus] without delay.” Rivera-Moreno, 61 V.I. at 311 (internal citations and quotations omitted). The Court can deny the writ of habeas corpus if the petitioner has not met the prima facie standard. Id. If the Court issues an order granting the writ of habeas corpus, the respondent must file a return that responds to the petition. V.I. H.C.R. 2(e). “The return must explain under what lawful order the petitioner is detained and must allege facts establishing the legality of the petitioner’s custody. Any material allegation of the petition not controverted in the return is deemed admitted for purposes of the proceeding.” /d. at 2(e). After the filing of the return, the petitioner may file a traverse denying or controverting any of the material facts or matters set forth in the respondent’s return.” /d. at 2(f). “A return must be verified under oath and must be served on the respondent.” Id. The Court, thereafter, may hold an evidentiary hearing to address the merits of the matter and to “proceed in a summary way Simon v. Mullgrav Case No. SX-15-CV-278 Memorandum Opinion to hear such proof as may be offered against the petitioner’s imprisonment or detention... and to dispose of the petition as the justice of the case may require.” Id. at 2(g)(4). If the Court grants habeas corpus relief on the merits ...the Court shall provide a successful habeas corpus petitioner with redress in the form of a remedy that cures the constitutional or statutory violation ....” Id. at 2(h). III. DISCUSSION Simon filed the petition alleging various claims for habeas relief. First, he alleges that his transfer from GGACF to CCDF was illegal because he had no pretransfer hearing. Pet. at T{ 18, 19, 40. Second, he claims that his transfer from CCAGF to CCDF was in retaliation for filing lawsuits against prison officials, assisting other inmates with filing lawsuits, and because he made statements to Virgin Islands public officials about the deplorable conditions of the prison during a site visit. Id. at J] 7-10, 14-15, 41. Third, he claims a deterioration in his rehabilitation due to lack of vocational and educational programs. Id. at {7 16, 17, 20, 42. Fourth, he asserts a lack of access to adequate dental care in violation of the Eighth Amendment. /d. at [J 11-13, 25-35.4 Fifth, similar to his third claim, Simon asserts that he lacks access to adequate vocational and educational programs as provided under 5 V.I.C. § 4503(c) at CCDF. Jd. at [J 21, 23, 24, 43.5 Sixth, Simon claims that CCDF failed to provide him with job opportunities in the field of agriculture and legal. Id. at [J 38, 39, 44. Seventh, Simon argues that CCDF officials failed to provide him with the opportunity to make unmonitored calls to his attorney. Id. at JJ 36, 45. Finally, Simon eighth claims alleges that the CCDF’s institution law library is inadequate and violates his right of access to the courts. Id. at J 37, 46. Each of these claims are addressed below. A. Illegal Transfer First, Simon alleges that his transfer from GGACF to CCDF violated the laws of the Virgin Islands and his due process rights under the Fourteenth Amendment because the 4 Simon’s petition contains two paragraphs numbered “43”. The first paragraph 43 states “IIlegality Four” relating to a violation of his right to dental care. The second paragraph 43 states “Illegality Five” relating to the CCDF’s failure to provide adequate vocational and educational programs. Pet. J 43. 5 Id. Simon v. Mullgrav Case No. SX-15-CV-278 Memorandum Opinion respondents did not provide him with a pretransfer hearing. The Fourteenth Amendment of the United States Constitution prohibits a state or territory from depriving “any person of life, liberty, or property without due process of law." U.S. Const. amend. XIV, § 1. It is well established that the Fourteenth Amendment does not provide a prisoner with a liberty or property interest in remaining in a particular institution. Meachum v. Fano, 427 U.S. 215, 224 (1976). Moreover, “[t]he Supreme Court [of the United States] has held quite explicitly that unless a statute confers upon a prisoner the right to be incarcerated in a particular prison, the Constitution does not require a hearing prior to a transfer.” Ali v. Gibson, 631 F.2d 1126, 1135 (3d Cir. 1980) (citing Meachum, 427 U.S. at 215). Under Virgin Islands law, individuals who are sentenced to a term of imprisonment are placed in the custody and control of the BOC. See 3 V.I.C. § 375(a) (“providing that the [BOC] shall exercise general control over persons arrested, detained, or sentenced by a court of law”). The BOC is administered under the supervision and direction of the Director who “shall organize the Bureau to provide security, custody and rehabilitations of correctional inmates.” 3 V.I.C. § 373(b). In addition to granting the Director with broad authority over inmates, the Legislature also granted the Director with the authority to transfer inmates to other detention facilities pursuant to 5 V.I.C. § 4503. Specifically, section 4503(c) provides: The Director of Corrections is authorized to enter into agreements to use the correctional or detention facilities of the United States Bureau of Prisons; or the correctional facilities of any state or local government or private correctional entity located in the United States, its territories, possessions, commonwealths or the District of Columbia, which are accredited by the American Correctional Association, when the Director of Corrections determines that detention and/or correctional facilities within the Virgin Islands are inadequate to serve the best interest of the inmate or the general interest or welfare of the Territory; provided that as a condition of and prior to transfer of any inmate, the Director of Corrections shall ascertain and insure the availability of educational and/or vocational programs at the institution they are to be transferred to for the purpose of enabling such inmates to gain marketable skills, and provided further that that no inmate is to be transferred to any institution lacking any such program(s). 5 VLC. § 4503(c). Simon v. Mullgrav Case No. SX-15-CV-278 Memorandum Opinion Here, Simon claims that his transfer from GGACF to CCDF was illegal. He alleges that Virgin Islands law provides that a prisoner shall be given a hearing prior to transfer to any off-island correctional facility. Neither the Constitution nor Virgin Islands law require a hearing prior to the transfer of an inmate. Thus, Simon has failed to state a prima facie claim that he was entitled to a pretransfer hearing. 2. Retaliatory Transfer Simon next contends that he was transferred to CCDF in retaliation for: (1) filing lawsuits against prison officials; (2) assisting other inmates with legal research and the filing of lawsuits; and (3) making comments to visiting Virgin Islands senators about deplorable conditions at the BOC in the presence of BOC officials. The United States Constitution does not permit prison officials, as agents of the government, to retaliate against a prisoner for exercising his or her constitutional rights. Bistrian v. Levi, 696 F.3d 352, 376 (3d Cir. 2012) (“Retaliating against a prisoner for the exercise of his constitutional rights is unconstitutional.”) (internal citations and quotations omitted)). However, “the constitutional rights that prisoners possess are more limited in scope than the constitutional rights held by individuals in society at large.” Shaw v. Murphy, 532 U.S. 223, 229 (2001). To state a prima facie case for an unconstitutional retaliation, “[a] prisoner alleging retaliation must show (1) constitutionally protected conduct, (2) an adverse action by prison officials sufficient to deter a person of ordinary firmness from exercising his [constitutional] rights, and (3) a causal link between the exercise of his constitutional rights and the adverse action taken against him." Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003) (internal quotations omitted) (citing Rauser v. Horn, 241 F.3d 330, 333 (3d Cir. 2001)). If the petition demonstrates that his or her exercise of a constitutional right was a substantial or motivating factor in the challenged decision, the burden shifts to the prison officials to prove that “they would have made the same decision absent the protected conduct for reasons reasonably related to a legitimate penological interest.” Rauser, 241 F.3d at 334. Thus, in order for a petition to state a prima facie case for retaliation, it must also allege facts demonstrating that the exercising of a protected right was a substantial or motivating factor that resulted in the transfer. a. Filing Grievances Against Prison Officials Simon v. Mullgrav Case No. SX-15-CV-278 Memorandum Opinion Simon claims that his transfer to CCDF was in retaliation for filing lawsuits against prison officials. Undisputedly, “[a]n inmate has an undisputed First Amendment right to file grievances against prison officials on his own behalf.” Herron v. Harrison, 203 F.3d 410, 415 (6th Cir. 2000). Retaliating against a prisoner for filing complaints violates that inmates First Amendment rights. See Mitchell v. Horn, 318 F.3d 523, 530 (3d Cir. 2003). This First Amendment Right to file grievances is protected only if the complaints are not frivolous. See Lewis v. Casey, 518 U.S. 343, 353 n. 3 (1996) (“Depriving someone of a frivolous claim deprives him of nothing at all, except perhaps the punishment of Federal Rule of Civil Procedure 11 sanctions.”). Thus, alleging that a complaint was filed does not in and of itself satisfy the first prong of a retaliatory transfer claim. Those allegations must include facts supporting the inference that the grievances and/or lawsuits were non-frivolous. In this matter, Simon alleges that “[p]rior to the transfer to Floridal,] petitioner had and still have several lawsuits against present and former BOC Officials, pending in the court of the U.S.V.L. (attacking the conditions of petitioner’s confinement and criminal conviction and suit for tort).” Pet. at J 14. The petition is silent on the details of those claims and, consequently, the Court is unable to conclude that Simon filed non-frivolous claims that would warrant First Amendment protection. Because Simon is unable to satisfy the first prong of his claim based on retaliation for filing lawsuits against prison officials, this claim will be dismissed. b. Assisting Inmates in Filing Lawsuits Next, Simon alleges that he is entitled to habeas relief because he was transferred in retaliation for assisting inmates in filing grievances against prison officials. An inmate, however, has no constitutional right to assist other inmates in filing grievances. See Freeman v. Lyons, Civ. No. 5:14-CV-2350-DSF, 2016 U.S. Dist. LEXIS 23429, *18 (C.D. Cal. Feb. 8, 2016) (“[T]here is no clearly established constitutional right to inmate assistance when filing a grievance. . .” and thus, “in turn, [the inmate] had no derivative right to assist [another] inmate to file a grievance, which itself means there was no underlying constitutional right that the retaliation infringed upon.”) Thus, because Simon has not alleged that he has engaged in constitutionally protected conduct, his claim for habeas relief on this basis that his transfer was in retaliation for assisting other inmates in filing grievances must fail. Simon v. Mullgrav Case No. SX-15-CV-278 Memorandum Opinion c. Statements Made to Senators Simon contends that his transfer was in retaliation because he made certain comments to Virgin Islands lawmakers about the prison leadership’s failure to maintain the prison. Simon alleges that he made certain statements to Senators when they came to visit GGACF sometime between April and June 2013. These allegations implicate Simon’s First Amendment free speech rights because even when incarcerated, a prisoner retains First Amendment rights as long as those rights do not conflict with his or her status as an incarcerated person or interferes with the rationally-related government interest in limiting the constitutional right for the management of prisons. Pell v. Procunier, 417 U.S. 817, 822 (1974) (holding that “a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system”). The Court concludes that Simon has set forth a plausible claim that he has engaged in constitutionally protected conduct with regards to the first prong of a freedom of speech retaliation claim. In order to be afforded First Amendment freedom of speech protection, a prisoner’s speech must relate to matters of public concern and not simply a matter related to the prisoner’s personal interest. See McElroy v. Lopac, 403 F.3d 855, 858 (7th Cir. 2005) (A prisoner's speech "must relate to a public concern and not just a personal matter to receive First Amendment protection."). In his petition, Simon alleges that, prior to his transfer, sometime between the months of April and June 2013, certain senators from the Virgin Islands Legislature visited the GGACF law library. Pet. at J 8. Simon claims that he complained about the prison conditions at GGACF, the failure of BOC to maintain the conditions of the facility, and that BOC made false claims to the public that they had spent funds to improve the prison to the visiting Virgin Islands Senators. Id. at [J 8-10. During this visit, Simon alleges that he notified the senators, in the presence of the Warden and the Chief of Security, of the Bureau's “failure to maintain the conditions of the facility and their false claims to the public that they had spent money to do so.” /d. at J 9. The Court finds that these statements are sufficiently related to matters of public concern to justify First Amendment protection. Simon vy. Mullgrav Case No. SX-15-CV-278 Memorandum Opinion Second, Simon must allege that he suffered an adverse action by a prison official. As noted above, an adverse action occurs if it would “deter a person of ordinary firmness from exercising his First Amendment rights.” Allah v. Seiverling, 229 F.3d 220, 225 (3d Cir. 2000). Here, Simon alleges that he was transferred to another correctional facility for speaking to senators out about the conditions at the GGACF. Simon alleges that the facility where he was transferred to does not have any vocational programs (Pet. J 20) and has inadequate educational programs (Pet. JJ 23-24) as compared to the GGACF. Reading the allegations in a light most favorable to Simon, he has alleged facts that would suggest that he was transferred to a less desirable correctional institution. At this stage, the Court finds that Simon has pled sufficient facts to demonstrate that he suffered an adverse action. See e.g., Rauser, 241 F.3d at 333 (holding that the petitioner demonstrated that adverse actions occurred to him when the prison officials denied the inmate parole, transferred to a distant prison where his family could not visit him regularly, and penalized him financially). The Court, however, does not reach the same result with regards to the third element of an inmate retaliation claim. The third element of a retaliation claim requires Simon to plead sufficient facts that would allege a causal link between the exercise of his constitutional right and the adverse action taken against him. See Bond v. Horne, 553 F. App'x 219, 223 (3d Cir. 2014) (A petitioner must “establish the requisite causal connection between [the] protected activity and the alleged adverse action.”). To satisfy this prong, Simon must plausibly raise the inference of causation that the protected conduct was the substantial factor in motivating the adverse action. Pepe v. Lamas, No. 16-3195, 2017 U.S. App. LEXIS 2748, at *3 (3d Cir. Feb. 16, 2017) (citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 280 (3d Cir. 2000)) (determining that the petitioner satisfied the third element through "timing plus other evidence" that the timespan of a month after the petitioner filed administrative grievances against a prison official who was his boss and the denial of his reinstatement to his kitchen job was enough for a fact finder to infer the causal link). A petitioner can satisfy the causal link by demonstrating that the “suggestive timing [of the adverse action] is relevant to causation in retaliation case.” Rauser, 241 F.3d at 334. If the petitioner cannot demonstrate temporal proximity, the petitioner can establish a pattern of antagonism by prison authorities with the timing of the infractions to establish a causal link. See Lauren W. Simon v. Mullgrav Case No. SX-15-CV-278 Memorandum Opinion ex rel. Jean W. v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007) (determining that in order for a petitioner to show a causal link, the petitioner must prove “either (1) an unusually suggestive temporal proximity between the protected activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to establish a causal link"); Allah, 229 F.3d at 225 (holding that a factfinder could infer a causal link from the specific facts of the case that petitioner’s administrative segregation resulted in petitioner’s “reduced access to phone calls, reduced access to the commissary, reduced access to recreation, confinement in his cell for all but five hours per week, denial of access to rehabilitative programs and, significantly, inadequate access to legal research materials and assistance,” which inhibited his First Amendment rights). Simon alleges that he made the statements to the senators during their visit sometime between April and June 2013. Simon was then transferred on September 30, 2014. Viewing these allegations in a light most favorable to Simon, BOC officials transferred Simon approximately 15 months after he made the statements to the senators. Other courts have held that gaps of six months or more between the alleged protected activity and the adverse action are insufficient to establish a causal connection for purposes of retaliation. See Keeling v. Barrager, 666 F. App'x 153, 155 (3d Cir. 2016) (officer's allegedly retaliatory transfer of prisoner to a different cellblock thirteen months after prisoner filed a lawsuit against the officer, without more, "too remote in time to infer an unlawful motive"); Vecchione v. Dep't of Educ. of N.Y.C., No. 10 Civ. 6750 (GBD), 2014 U.S. Dist. LEXIS 69708, *5 (S.D.N.Y. May 16, 2014) (concluding that a gap of "more than six months" between the protected activity and the adverse action is insufficient to establish a causal connection);; Cabello v. Loop, Civil No. 1:10-CV-700, 2012 U.S. Dist. LEXIS 109510, *13-14 (M.D. Pa. Aug. 6, 2012)) (“the approximate sixteen-month temporal gap between the filing of the Amended Complaint in Cabello v. Grace... and this second misconduct, is too remote to warrant a finding of a causal connection based on temporal proximity.”). The Court agrees with this line of cases and conclude that a gap of fifteen months between Simon’s protected statements and the date of his transfer is too remote to establish a causal connection. Any other conclusion would always subject prison officials to claims of retaliation for transferring a prisoner. “[C]ourts ought to afford appropriate deference and flexibility to state officials trying to manage a Simon v. Mullgrav Case No. SX-15-CV-278 Memorandum Opinion volatile environment. Such flexibility is especially warranted in the fine-tuning of the ordinary incidents of prison life.” Sandin, 515 U.S. at 482-83 (internal citations omitted). Moreover, “[t]he mere fact that an adverse action occurs after a complaint or grievance is filed is relevant, but not dispositive, for the purpose of establishing a causal link between the two events ... Only where the facts of a particular case are ‘unusually suggestive’ of a retaliatory motive will temporal proximity, standing alone, support an inference of causation.” Cabello, 2012 U.S. Dist. LEXIS 109510, at *10 (citing Krouse v. Am. Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997). Simon has also failed to allege “a pattern of antagonism coupled with timing to establish a causal link” between the protected activity and the allegedly adverse action. Marasco, 318 F.3d at 512. Simon does not allege facts to suggest that BOC officials engaged in a pattern of antagonism prior to him being transferred. In fact, Simon states in his petition he has been incarcerated since 1994 and has no institutional disciplinary infractions. Pet. at 76. Thus, the Court finds that Simon has failed to allege a plausible claim that his transfer to CCDF was illegal and in violation of his First Amendment free speech rights. 3. Deprivation of Rehabilitative Opportunities Simon contends that CCDF failed to offer adequate vocational and educational programs to him that in turn caused a deterioration in his rehabilitation, in violation of his rights under Virgin Islands law. Simon alleges that while incarcerated at GGACF, he was enrolled in vocational and educational programs in agriculture and Virgin Islands history. Simon alleges that these programs were not available at CCDF and that the transfer prevented him from completing his educational programs. Simon does not cite the specific law he claims was violated. However, under section 4503 of title 5 of the Virgin Islands Code, the BOC can transfer an inmate to another correctional institution only if that institution provides educational programs wherein the inmate can gain marketable skills.© Section 4503 does not require that the programs at the various institutions be comparable or be reviewed to determine their effectiveness when 6 Title 5, Section 4503 provides, in full: Simon y. Mullgrav Case No. SX-15-CV-278 Memorandum Opinion compared to another institution’s programs. As stated by the District Court of the Virgin Islands: There is no requirement [under 5 V.LC. § 4503] that the programs be comparable, nor that the Attorney General promulgate rules that ascertain that one institution's programs are more or less effective at making an inmate marketable than another institution's programs. While Appellant's desire to seek educational opportunities tailored to his aspirations are well-placed, the statute cannot be interpreted to create procedures nor objective criteria that are not within its text. Smith v. Stridiron, D.C. Civ. App. No. 2006/044, 2008 U.S. Dist. LEXIS 107739, at *9 (D.V.I. App. Div. Feb. 27, 2008). Simon admits in his petition that the CCDF does provide an educational program (GED program) and at least a sewing class. Pet. at [J] 20, 22-23. Simon is not entitled to the exact same educational and vocational programs he participated in at GGACF. A prisoner has no expectation of protected property or liberty interest under section 4503(c) to receive the exact same educational or vocational programs at the new facility that he or she received in the Virgin Islands. See Blyden v. Clarke, Case No. 7:15CV00042, 2015 U.S. Dist. LEXIS 113377, at *15, 18-19 (W.D. Va. Aug. 26, 2015) (interpreting 5 V.I.C. § 4503(c) to find that the BOC has a statutory obligation to ensure that there are vocational or educational programs available at the new facility upon the inmate’s transfer but they need not be exactly the same); see also Maxwell v. Stridiron, 45 V.I. 185, 194 (V.I. Terr. Ct. 2003) (rejecting the petitioner’s argument that the lack of “quality of educational resources at [a detention facility] renders a transfer unconstitutional under the Fourteenth Amendment and thus amenable to habeas corpus relief.”). BOC must merely determine that the new facility offers some kind of educational or vocational programs. Id. Thus, Simon has not alleged a prima facie case for habeas relief. 4, Denial of Dental Care Next, Simon alleges that his right to adequate dental care pursuant to the Eighth Amendment of the United States Constitution was violated. The Eighth Amendment of the United States Constitution prohibits “cruel and unusual punishments.” U.S. CoNsT. amend. VIII. See generally Farmer v. Brennan, 511 U.S. 825, 832 (1994) (opining that the Constitution Simon v. Mullgrav Case No. SX-15-CV-278 Memorandum Opinion does not mandate comfortable prisons but humane ones). The United States Supreme Court has held that the Eighth Amendment requires the government to provide adequate healthcare for persons incarcerated. Estelle v. Gamble, 429 U.S. 97, 103 (1976). An inmate’s Eighth Amendment right to adequate health care also includes access to a minimal level of dental care. Petrazzoulo v. U.S. Marshals Serv., 999 F. Supp. 401, 407 (W.D.N.Y. 1998). “This conclusion does not mean, however, that every claim by a prisoner that he has not received adequate medical treatment states a violation of the Eighth Amendment.” Estelle, 429 U.S. at 105. The complaint must be more than a medical malpractice or negligence allegation in order to rise to an Eighth Amendment violation of the victim prisoner’s rights. Id. at 106. The Constitution only requires a minimal level of dental care for an inmate. See Dean v. Coughlin, 804 F.2d 207, 215 (2d Cir. 1986) (“We are governed by the principle that the objective is not to impose upon a state prison a model system of dental care beyond average needs but to provide the minimum level of [dental] care required by the Constitution.) (citing Ruiz v. Estelle, 679 F.2d 1115, 1150 (Sth Cir.), vacated in part as moot, 688 F.2d 266 (5th Cir. 1982), cert. denied, 460 U.S. 1042 (1983) (internal quotations omitted)). Further, “[i]t must be remembered that the State is not constitutionally obligated, much as it may be desired by inmates, to construct a perfect plan for dental care that exceeds what the average reasonable person would expect or avail herself of in life outside the prison wall.” Dean, 804 F.2d at 215. To prove inadequate conditions of confinement under the Eighth Amendment, an incarcerated person must “allege acts or omissions by prison officials that indicate deliberate indifference to a serious medical need.” Williams v. Macut, No. 16-3958, 2017 U.S. App. LEXIS 2558, at *2 (3d Cir. Feb. 14, 2017) (internal citation omitted); see also West v. Keve, 571 F.2d 158, 161 (3d Cir. 1978) (A violation of the Eighth Amendment for inadequate healthcare “requires deliberate indifference on the part of prison officials and it requires the prisoner's medical needs to be serious.”). The petition does not allege sufficient facts that would establish that prison officials acted with deliberate indifference. “Deliberate indifference to serious medical needs of prisoners constitutes the unnecessary and wanton infliction of pain.” Estelle, 429 U.S. at 97; Farmer v. Brennan, 511 U.S. 825, 841-42 (1994) (opining that deliberate indifference occurs when a prison official "acted or failed to act despite his knowledge of a substantial risk of Simon v. Mullgrav Case No. SX-15-CV-278 Memorandum Opinion serious harm."); Maxwell, 45 V.I. at 191 (“In order to maintain an Eighth Amendment challenge to conditions of confinement, a prisoner must demonstrate a sufficiently serious objective deprivation, and that a prison official subjectively acted with a sufficiently culpable state of mind, i.e., deliberate indifference.") (internal quotations and citations omitted). To be sure, “an Eighth Amendment claimant must show more than indifference, deliberate or otherwise. The claimant must show that officials applied force maliciously and sadistically for the very purpose of causing harm, or, as the Court also put it, that officials used force with a knowing willingness that [harm] occur.” Farmer, 511 U.S. at 835-36. After a careful review of the petition, the Court concludes that Simon has failed to allege a plausible claim that prison officials acted with deliberate indifference. Here, Simon alleges that he saw a dentist at GGACF prior to his September 30, 2014 transfer to treat dental deficiencies. Pet. at { 11. After his transfer, Simon had requested dental assistance from CCDF medical personnel sometime during the months of November and December 2014. Id. at J 25. CCDF medical personnel informed Simon that he may wait up until one year to have a dental screening. /d. at J 27. After notifying prison personnel of his need for dental services, Simon was able to secure a dental appointment in January 2015 with the institution’s dentist, which was approximately two months from the date of his initial request. Jd. at J 28. The dentist suggested a course of action for his dental care of extracting his cavity-infected teeth, to which Simon refused. Simon told CCA and CCDF officials that the suggested dental treatment was insufficient. Id. at | 31. However, CCDF officials responded that Simon had been provided a dental examination by a licensed dentist who evaluated Simon and determined that his ailments can be treated through extractions and medications rather than highly specialized procedures. Id. at J 32. The dentist's recommended treatment is consistent with how he treats other inmates. Jd. Simon refused the proposed course of dental treatment. These facts do not rise to the level of deliberate indifference. Although Simon disagrees with the treatment offered, a “[m]Jere disagreement with a prescribed treatment. .. is not an actionable constitutional violation.” Williams v. Macut, No. 16-3958, 2017 U.S. App. LEXIS 2558, at *2 (3d Cir. Feb. 14, 2017). Neither a disagreement about a course of treatment, a claim of negligence, or medical malpractice constitutes a claim of cruel and unusual punishment upon which relief can be granted. Monmouth Cty. Corr. Institutional Simon v. Mullgrav Case No. SX-15-CV-278 Memorandum Opinion Inmates, 834 F.2d at 353-54; see also Brown v. Chambersburg, 903 F.2d 274, 278 (3d Cir. 1990) (“While the distinction between deliberate indifference and malpractice can be subtle, it is well established that as long as a physician exercises professional judgment, his behavior will not violate a prisoner's constitutional rights.”). There is no indication, based on Simon's allegations, that prison officials were maliciously refusing to provide Simon with dental care or that they sought to impose any harm on him through their proposed method of treatment. Simon simply disagreed with the proposed method of treatment. This does not rise to the level of a constitutional violation. 5. Denied Employment While incarcerated at GGACF, Simon alleges that he was employed in the Institutional Law Library where his duties were to assist inmates with legal research and prepare lawsuits concerning their criminal convictions and the conditions of their confinement. Pet. at ] 7. Simon claims that the Respondents violated his rights because CCDF officials failed to provide him with job opportunities in agriculture or legal work “so as to enhance his accumulated marketable skill.” Pet. at | 44. Simon does not state which constitutional provision or Virgin Islands law applies to this claim. Nonetheless, and as stated above, a petitioner makes a prima facie case when the petition states specific factual allegations that require habeas relief rather than mere conclusions or speculations. Donovan v. Gov't of the V.L, Civ. No. 2013 V.I. LEXIS 21, *7 (V.I. Super. Ct. Mar. 25, 2013). He fails to cite any Virgin Islands law, or any law for that matter, that provides a prisoner with any right to employment. Even if Simon argued a constitutional claim, courts have uniformly held that “a state has no constitutional obligation to provide an inmate with employment, even if a statute or regulation creates such an interest.” Penrod v. Zavaras, 94 F.3d 1399, 1407 (10th Cir. 1996); see also Johnson v. Rowley, 569 F.3d 40, 44 (2d Cir. 2009) (“[A] prisoner in a [state] correctional facility has no protected liberty interest in a particular job assignment.") (internal citation and quotation omitted); Fidtler v. Pa. Dep't of Corr., 55 F. App'x 33, 35 (3d Cir. 2002) (“[A] state inmate does not have a liberty or property interest in prison employment.”) (unpublished); Bulger v. U.S. Bureau of Prisons, 65 F.3d 48, 49 (5th Cir. 1995) (“[P]risoners have no constitutionally protected liberty or property interests per se in their Simon v. Mullgrav Case No. SX-15-CV-278 Memorandum Opinion prison job assignments.”); James v. Quinlan, 866 F.2d 627, 630 (3d Cir. 1989) (“[P]risoners have had no entitlement to a specific job, or even to any job.”); Newsom v. Norris, 888 F.2d 371, 374 (6th Cir. 1989) (“[T]he Constitution does not create a property or liberty interest in prison employment and any such interest must be created by state law by language of an unmistakably mandatory character.”) (internal quotations, brackets, and citations omitted); Ingram v. Papalia, 804 F.2d 595, 596 (10th Cir. 1986) (“The Constitution does not create a property or liberty interest in prison employment.”); Garza v. Miller, 688 F.2d 480, 486 (7th Cir. 1982) (“[T]here is no constitutional mandate to provide educational, rehabilitative, or vocational programs.”); Presbury v. Wenerowicz, 472 F. App'x 100, 101 (3d Cir. 2012) (“[T]here is no liberty interest in a prison job arising from the Due Process Clause.”); St. Louis v. Morris, 573 F. Supp. 2d 846, 853 n.4 (D. Del. 2008) (“[A] prisoner does not have a constitutional right to employment while an inmate.”) (citing James v. Quinlan, 866 F.2d 627, 630 (3d Cir. 1989). Simon alleges that he requested employment in the field of agriculture and legal work from CCDF Officials in October 2014 and was denied employment in such jobs because the prison does not have a Law Library assistant or employ prisoners in the field of agriculture. Pet. at J 38. Prior to being transferred to CCDF, Simon was employed in the GGACF Institutional Law Library, where his duties included assisting inmates to conduct legal research and prepare lawsuits concerning their criminal convictions and the conditions of confinement. Pet. at J 7. In essence, Simon argues that he is entitled to the exact same jobs he held at GGACF. He demands that CCDF hire him either as a law library assistant or provide him with a job in agriculture. However, Simon has no property or liberty interest in prison employment under the U.S. Constitution or Virgin Islands law. Even if he had some expectation of a property interest, the prison management has the authority to eliminate jobs or rotate prisoners to other jobs. See Adams v. James, 784 F.2d 1077, 1079 (11th Cir. 1986) (“An assignment to the job of law clerk does not invest an inmate, or those he assists, with a property interest in his or her continuation as a law clerk. Despite the aspect of property in the accumulation of experience and intellectual capital by the inmate law clerk, job assignment and reassignment remain the prerogative of the prison administrators.”). Simon y. Mullgrav Case No. SX-15-CV-278 Memorandum Opinion Thus, he has failed to make a prima facie case upon which relief can be granted because Simon has no property or liberty interest in his choice of employment while incarcerated. 6. Unmonitored Phone Calls Simon seventh claim alleges that he is not permitted to make unmonitored telephone calls to his lawyers. This claim raises Fourth Amendment and Sixth Amendment concerns. In order to invoke protections under the Fourth amendment, Simon must allege facts demonstrating a legitimate expectation of privacy in his telephone calls. Katz v. United States, 389 U.S. 347 (1967). With regards to the Sixth Amendment, that amendment provides inmates with the opportunity to seek and receive the assistance of counsel. “The right to counsel is guaranteed by the Sixth Amendment.” Corraspe v. People of the Virgin Islands, 53 V.I. 470, 485 (V.I. 2010). This right to counsel encompasses the right to effective assistance of counsel. Id. “[P]risoners have a constitutional right to access to the courts, which requires access to adequate law libraries or adequate assistance from persons trained in the law for filing challenges to criminal sentences, both direct and collateral, and civil rights actions.” Allah, 229 F.3d at 224. “The right of access is designed to protect an inmates’ ability to file pleadings, appellate briefs, and other court documents.” Sands v. Crist, No. 89-15502, 1989 U.S. App. LEXIS 23560, at *4 (9th Cir. Dec. 15, 1989). “[P]rivate communication with an attorney is a meaningful part of that process .... and the privacy accorded to the attorney- client relationship must exist even in the prison context.” Brown v. Gulash, Civil No. 07-CV- 370-JPG, 2009 U.S. Dist. LEXIS 60970, at *20 (S.D. Il. 2009). The Court recognizes, however, that it must balance a prison institution’s interest in a safe and secure operations with an inmate’s expectation of engaging in private communication with his counsel. See United states v. Sababu, 891 F.2d 1308, 1329-30 (7th Cir. 1989). If in fact, Simon’s calls to his attorneys are monitored, any such regulation that permits such monitoring must be reasonably related to a legitimate penological interest in order to be valid.” See Turner, 482 U.S. at 89; Mann v. Reynolds, 46 F.3d 1055, 1059-60 (10th 7 In the federal system, prison officials are permitted to monitor an inmate's telephone conversation with his or her attorney under certain situations. See 28 C.F.R. § 540.102 (1994) (“The Warden shall establish procedures that enable monitoring of telephone conversations on any telephone located within the institution, said monitoring to be done to preserve the security and orderly management of the institution and to protect the public. The Warden must provide notice to theinmateof the potential for monitoring. Staff may Simon v. Mullgrav Case No. SX-15-CV-278 Memorandum Opinion Cir. 1995) (providing that although the Sixth Amendment does not give an inmate an unfettered right to contact with counsel, prison restrictions should be justified by a valid penological purpose). Without knowing whether there is a reasonably related penological interest in monitoring Simon’s telephone calls, the court finds that Simon has pled a plausible claim. The Court is without sufficient information to make a determination that there is a legitimate penological interest in monitoring Simon’s telephone calls. Prison officials are not free to promulgate regulations or engage in practices that unreasonably deny an inmate unmonitored access to his attorney because “[r]egulations and practices that unjustifiably obstruct such access are invalid.” Ruiz, 679 F.2d at 1153 (internal quotations omitted). Accordingly, the Court will grant the writ on Simon’s allegation that he is not allowed to make unmonitored phone calls to his attorney and will require that the Respondents file a traverse addressing this issue. ® 7. Inadequate Law Library Simon’s last claim alleges that he is being denied access to the courts because the library at the CCDF is inadequate. Specifically, Simon alleges: The Institution Law Library at CCDF does not provide petitioner with adequate access to the courts, as the library does not provide access to case laws of the United States Federal Reporter (which petitioner needs these case [c]ites to contest issues concerning his conditions of confinement and his instant criminal conviction), other than cases decided by the Third Circuit Court of Appeals that involved a case that was started in the Courts of the United States Virgin Islands. Pet. at J 37. An inmate claiming a violation of his or her right to access the courts must demonstrate that he or she suffered an actual injury or harm and how that harm arose by official prison acts and frustrated his or her litigation. Christopher v. Harbury, 536 U.S. 403, not monitor an inmate's properly placed call to an attorney. The Warden shall notify an inmate of the proper procedures to have an unmonitored telephone conversation with an attorney.”). 8 The Court notes that Simon alleges that these calls are being monitored at the CCDF, a facility located in Lecanto, Florida. The Court will require the parties to address whether the Court can grant any relief to Simon on this issue based on the fact that he is being housed in a facility in a jurisdiction located outside of the Virgin Islands. Simon v. Mullgrav Case No. SX-15-CV-278 Memorandum Opinion 415 (2002) (holding that “allegations must describe the official acts frustrating the litigation”). The inmate must “demonstrate that the alleged shortcomings in the library or legal assistance program hindered his efforts to pursue a legal claim” Lewis v. Casey, 518 U.S. 343, 351 (1996). The inmate must also plead facts demonstrating an actual injury as a result of not being able to access the court. Spuck v. Ridge, 347 F. App'x 727, 730 (3d Cir. 2009). Simon’s petition is devoid of any reference to a specific problem that he wishes to research and makes a vague reference that he does not have access to a certain type of federal reporter. Simon does admit in his petition that he has access to cases decided by the Third Circuit Court of Appeals. The Court takes judicial notice that Simon was convicted by a jury empaneled by the Territorial Court of the Virgin Islands and that his appeal was heard by the District Court of the Virgin Islands appellate Division and the Third Circuit Court of Appeals. See Simon, 679 F.3d 109; see also Simon, 116 F. Supp. 3d 529. Simon does notallege that he does not have access to cases involving Virgin Islands law or even Third Circuit precedent.? Simon alleges only that the law library at the CCDF does not provide him with “access to case laws of the United States Federal Reporter” which he contends is needed to “[cite] to contest issues concerning his conditions of confinement and his instant criminal conviction.” Pet. at 37. It is unclear what issues Simon is referring to and why that specific reporter volume is needed. Accordingly, the Court will deny Simon’s claim for habeas relief because there is no constitutional claim if an inmate fails to identify a “specific problem he wished to research and... [there is] no actual injury or specific harm which has resulted to him by his limited access to the jail library or its limited contents.” Strickler v. Waters, 989 F.2d 1375, 1383 (4th Cir. 1993); see also Blyden v. Clarke, Civ. No. 7:15CV00042, 2015 U.S. Dist. LEXIS 113377, at *29 n.19 (W.D. Va. Aug. 26, 2015) (determining that an inmate’s “complaints about the law library and lack of convenient access to Virgin Islands legal materials does not support a constitutional claim of denial of access to the courts”). 9 Prior to the establishment of the Supreme Court of the Virgin Islands, the Third Circuit Court of Appeals served as the de facto court of last resort on matters concerning Virgin Islands law. See Better Bldg. Maint. of the V.1. v. Lee, 60 V.L. 740, 755 (V.1. 2014). Simon v. Mullgrav Case No. SX-15-CV-278 Memorandum Opinion Page Z0 of 20 IV. CONCLUSION For the reasons stated above, the Court concludes that Simon has properly alleged a prima facie claim on one of his claims for habeas relief - his inability to make unmonitored telephone calls to his attorney. The Court concludes that Simon has failed to allege plausible facts on any of his remaining claims. Accordingly, the Court will grant the petition and will issue the writ on the claim that he is not allowed to make unmonitored telephone calls to his attorney. The remaining claims alleged in the petition will be denied. An appropriate Order follows. Dated: September 19, 2018 Lf RO T A. MOLLOY Judge of the erior Court ATTEST: ESTRELLA GEORGE Clerk of the Court By: ™ tC DTS Op lerk Supervisor Dated WIGLIE.